JOHN W. WARNER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Warner appealed the denial of his Rule 3.850 postconviction motion, which raised seven grounds including claims of ineffective assistance of counsel. The court reversed and remanded as to Ground 5 and a related subclaim in Ground 6 concerning potential double jeopardy violations from multiple charges for the same crime, but affirmed the denial of all other grounds.
The court reversed and remanded because Warner's claims were facially insufficient as a matter of law. To proceed on a negotiated plea-based ineffective assistance claim, the movant must allege that he would not have accepted the plea agreement but for the alleged misadvice of counsel—an allegation Warner failed to make.
[1] A defendant seeking postconviction relief based on ineffective assistance of counsel regarding a negotiated plea must allege that they would not have accepted the plea ag…
[2] Convictions for robbery and grand theft of the same item may violate double jeopardy.
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Join FLexlaw to unlock all legal intelligence“convictions for robbery and grand theft of the same item may violate double jeopardy”
Establishes the potential constitutional violation underlying Warner's claim, citing Hayes v. State and Sirmons v. State
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Join FLexlaw to unlock all legal intelligenceWarner was charged with five offenses from a single criminal episode: robbery, grand theft, grand theft auto, kidnapping, and battery. He pleaded nolo…
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FULMER, Chief Judge.
John Warner filed a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850, raising seven grounds. Ground 6, in which Warner alleged ineffective assistance of counsel, comprises seven subclaims, one of which concerned the same underlying issues as asserted in Ground 5. The postconviction court denied relief on all grounds and sub-claims. Warner appeals all denials. We reverse and remand as to Ground 5 and the related subclaim of Ground 6. We affirm as to all other grounds and sub-claims.1
Warner was charged with five offenses arising out of a single criminal episode: robbery, in violation of section 812.13(1), (2)(c), Florida Statutes (2002); grand theft, § 812.014(1), (2)(c)(l); grand theft auto, § 812.014(2)(c)(6); kidnapping, § 787.01(l)(a)(2), Fla. Stat. (2002); and battery, § 784.03(1), Fla. Stat. (2002).
He pleaded nolo contendere to all charges and was sentenced to twenty years’ imprisonment. In his motion for postconviction relief, Warner alleged in Ground 5 that he was charged three times for the same crime when he was charged with robbery, grand theft, and grand theft auto. He further alleged that a competent attorney would have filed a motion to dismiss the “surplusage.” In Ground 6(6), he makes the same underlying claim, alleging that trial counsel was ineffective in not moving to dismiss any “surplus charges.” The postconviction court entertained these claims on the merits and denied relief by concluding that the probable cause affidavit and the factual basis presented by the State at the plea hearing supported all of the charges. We cannot agree that the trial court’s order refutes Warner’s claims because convictions for robbery and grand theft of the same item may violate double jeopardy. See Hayes v. State, 803 So. 2d 695 (Fla.2001); Sirmons v. State, 634 So. 2d 153 (Fla.1994).
Further, the trial court failed to undertake a double jeopardy analysis by considering the factors set forth in Hayes.
However, our reversal is not based on the trial court’s failure to refute Warner’s claims. Instead, we reverse because the trial court addressed the claims on the merits when Warner’s allegations were facially insufficient.
Warner’s nolo contendere plea to all the charges filed against him was a negotiated plea. In his postconviction motion, he failed to request that his plea agreement be vacated or to allege that he would not have agreed to the plea bargain had he known about the double jeopardy violation. This omission renders his claims facially insufficient. See, e.g., State v. Taylor, 738 So. 2d 988, 989 (Fla. 2d DCA 1999) (noting that a necessary element for obtaining postconviction relief is that the movant must allege that he would not have accepted the plea agreement but for the alleged misadvice of counsel).
Therefore, we reverse the trial court’s summary denial of Warner’s motion as to Grounds 5 and 6(6). On remand, the trial court is directed to dismiss Warner’s motion as to these grounds without prejudice to file within sixty days a facially sufficient motion as to only these claims.
Reversed and remanded with directions.
DAVIS and WALLACE, JJ., Concur. . As one of his claims, Warner alleged that his trial counsel failed to file an appeal. This claim was treated as a petition for belated appeal and denied in case number 2D05-3560.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Henry v. State, 933 So. 2d 28 (Fla. 2d DCA 2006)…neffective assistance of counsel is an appropriate ground for a rule 3.850 motion). However, we affirm the postconviction court’s ruling on Henry’s ineffective assistance of counsel claims because they are facially insufficient. See Warner v. State, 916 So. 2d 879 (Fla. 2d DCA 2005). Our affirmance is without prejudice to Henry’s right to file a facially sufficient rule 3.850 motion. Because the two-year limit for filing rule 3.850 motions expired while this appeal was pending and the postconviction court’s o…
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Agent v. State, 19 So. 3d 1114 (Fla. 2d DCA 2009)…lly insufficient because it does not include an affirmative request to withdraw the plea, nor does Agent allege that he would not have entered his plea absent counsel’s promise that he would receive a youthful offender sentence. See Warner v. State, 916 So. 2d 879, 881 (Fla. 2d DCA 2005) (“In his postconviction motion, he failed to request that his plea ... be vacated or to allege that he would not have agreed to the plea ... had he known about the double jeopardy violation. This omission renders his claims f…
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Lawhon-Griffis v. State, 4 So. 3d 769 (Fla. 4th DCA 2009)…Fla. 4th DCA 2007) (concluding the defendant did not demonstrate prejudice because the plea offer was a package deal and the defendant failed to show that he would not have entered the plea if counsel had moved to dismiss count II); Warner v. State, 916 So. 2d 879 (Fla. 2d DCA 2005) (finding the defendant failed to state a sufficient claim where his convictions resulted from a negotiated plea and he did not allege that he would not have entered the plea bargain if he had known of a double jeopardy violation);…
Authorities Cited
- Sirmons v. State, 634 So. 2d 153 (Fla. 1994)
- Hayes v. State, 803 So. 2d 695 (Fla. 2001)
- State v. Taylor, 738 So. 2d 988 (Fla. 2d DCA 1999)